Court Caves to Transgender Pressure

It’s a decision that will have wide-ranging consequences for a big swath of America’s children and their use of restrooms at school.

A 4th U.S. Circuit Court of Appeals three-judge panel has ruled 2-1 that a Virginia high school discriminated against a transgender student by forbidding Gavin Grimm — whose biological sex is female — from using the boys’ restroom.

Parents, of course, are the priority stakeholders in their children’s health and safety at school. So when some parents complained that the female Grimm, 16, was permitted to use the boys’ restroom two years ago, the school responded by adopting a policy that required students to use facilities that correspond to their biological sex. Otherwise, they needed to use a private, single-stall bathroom.

But the American Civil Liberties Union — a relentless defender of transgender individuals — stepped in to represent Grimm.

“I feel so relieved and vindicated by the court’s ruling,” Grimm said in a statement this week released by the ACLU. “[It] gives me hope that my fight will help other students avoid discriminatory treatment at school.”

Not included, however, was any comment about the discrimination felt by kids and parents every day who are uncomfortable with the opposite sex in a school bathroom — or how their rights are affected every day by the court’s decision.

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Troy M. Andersen, chair of Virginia’s Gloucester County Public Schools, told LifeZette the school system is meeting with its attorney, “and we are planning to issue a statement perhaps this Friday.”

The panel successfully used, as the basis of its decision, Title IX — the federal law that prohibits discrimination in schools.

Grimm’s sex discrimination claim had previously been rejected by a federal judge. But the 4th Circuit panel ruled that the judge ignored a U.S. Department of Education regulation that transgender students in public schools must be allowed to use the restroom that corresponds with their gender identity.

The decision is key for several reasons. North Carolina — which recently decided (amid much LGBT pushback) to respect the rights of the majority of students and require students to use the restroom that corresponds to the biological gender — is under the control of the 4th Circuit. This circuit also covers Maryland, West Virginia, and South Carolina.

Maxine Eichner, a law professor and an expert on sexual orientation and the law, said that this ruling, the first of its kind, pertains to the recent North Carolina decision and any school in that state that receives federal funds.

“The effects of this decision on North Carolina are clear,” Eichner told The Virginia Pilot. “It is a long and well-considered opinion that sets out the issues. It will be influential in other circuits.”

“It may turn out that Title IX, as interpreted by the Obama administration, harms women’s sports. How ironic.”

Yet the 4th Circuit Court’s opinion says this: “We agree that it has indeed been commonplace and widely accepted to separate public restrooms, locker rooms, and shower facilities on the basis of sex. It is not apparent to us, however, that the truth of these propositions undermines the conclusion we reach regarding the level of deference due to the department’s interpretation of its own regulations.”

The truth undermines the court’s conclusion on how the school department interprets its own rules. The truth can be annoying — so the court decided to dismiss it, kowtowing instead to the well-funded vocal minority that is supported by the ACLU and at its zenith of legal and cultural change.

The lone dissenting opinion in the three-judge panel was written by Judge Paul V. Niemeyer, a George H.W. Bush appointee.

He wrote that the majority’s opinion “completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.”

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Yet privacy and safety are clearly not as important as transgender rights to the other two judges on the 4th Circuit panel, Judge Henry F. Floyd and Judge Andre M. Davis — both Obama appointees. They have helped reshape the court from one of the most conservative in the nation to its current state, according to The Pilot.

The decision may take effect in Grimm’s high school immediately. The Gloucester County School Board can appeal the decision to the full appeals court, or to the U.S. Supreme Court.

Grimm told The Pilot that he started refusing to wear girls’ clothing by age 6. In 2014, his parents helped him legally change his name, and a psychologist diagnosed him as having gender dysphoria.

Amy Ridenour, director of the National Center for Public Policy Research, told LifeZette, “A success attributed to Title IX is that it allowed more female students to participate in school sports. Now, Title IX is being used for the opposite. Young ladies faced with showering in front of biological males as the price of their participation in school sports are not always going to make a choice that could include taking their clothes off in front of boys.”

She added, “It may turn out in the end that, if rules saying thought trumps biology continue, the sports survive but showering after games and practice becomes a thing of the past, but it is too soon to say. It may turn out that Title IX, as interpreted by the Obama administration, harms women’s sports. How ironic.”